Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed. Judge Stark also pushed the November jury trial, but possibly by just a few weeks.
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In a recent order, Judge Stark ruled that evidence of willfulness would come in during the liability phase of a jury trial in which liability and damages are being tried separately. The ruling was one of several issued in the lead up to the June jury trial in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS.
In his ruling, Judge Stark noted that "[t]he Court's interest in conservation of resources disfavors Defendants' request,"...
Somewhere between the filing of the pretrial order and the pretrial conference, Judge Stark typically issues an order resolving pretrial disputes and allocating trial time. These orders - while usually short - provide a wealth of insight into his trial practices and preferences, and (often) his views on substantive evidentiary issues. They also serve to remind litigants of longstanding trial management practices (including those codified in his form pretrial order).
On Friday, Judge Stark issued a 3-page pretrial memorandum order in a set of consolidated Hatch-Waxman ("ANDA") actions, Silvergate Pharmaceuticals, Inc. v. Bionpharma, Inc. et al., C.A. Nos. 18-1962, 19-1067, 19-678. The order contained decisions on sealing the courtroom during the bench trial, obviousness proofs, disclosure of exhibits to be used on cross examination, and others.
Today, Chief Judge Stark scheduled an in-person hearing for July 1, 2020—one day after the expiration of the current standing order re: COVID-19.
The Court's current standing order does not preclude in-person hearings, but the Court has been holding hearings telephonically or by video conference during the pandemic. This order shows that the Court--or at least Chief Judge Stark—is hoping to restart some in-person hearings relatively soon.
The full text of the Court's oral order is:
ORAL ORDER: IT IS HEREBY ORDERED that the Court will hear argument on the post-trial motions on July 1, 2020 beginning at 1:00 p.m. Each side will be allocated up to one (1) hour to present its argument. This hearing is tentatively scheduled to …
In his lengthy ruling on the post-trial motions in Pacific Biosciences, Chief Judge Stark also set forth his views on whether indefiniteness may be tried to a jury, an issue that seems to come up repeatedly:
[Defendant] insists that the Supreme Court's decision in Teva vs. Sandoz[, 574 U.S. 318 (2015),] made indefiniteness an issue exclusively for the court to decide. I disagree. I continue to believe that I have discretion to put . . . indefiniteness before the jury where[,] as here, there are subsidiary fact disputes that inform the indefiniteness decision as a matter of law. [Defendant] has cited no contrary Federal Circuit case.
In fact, instead, the Federal Circuit [has] made clear that indefiniteness is …
The Delaware FBA held its annual meeting virtually today. It included really wonderful speeches by the judges, passing along the Chief Judge gavel in both the district court and the bankruptcy court.
The FBA also did a great job presenting the event via Zoom (did anyone else clap while sitting alone in their offices, or was it just me?!).
I won’t try to summarize everything that was said, consistent with our ongoing attempts—and failures—to keep our posts short. But here are some quick highlights that may be particularly relevant to IP/DE readers:
- Chief Judge Stark passed the gavel of Chief Judge to Judge Connolly, who will be new Chief Judge following the end of Judge Stark’s term …
As we noted recently, Chief Judge Stark has a practice of holding "§ 101 days," in which he hears oral argument on a number of § 101 motions all at once, each from a different case. He typically issues decisions from the bench regarding each motion—which is always exciting—and follows up later with a written decision.
At first it seemed that § 101 days tended to be fatal for the patents involved, but more recent hearings have shown otherwise.
On Friday, Chief Judge Stark posted the schedule and public access information for his next § 101 day, set …
In May 2020, West Publishing and Thomson Reuters filed a copyright action against ROSS Intelligence LLC, alleging that ROSS (through a third party) scraped content from WestLaw to start its own Artificial-Intelligence-based legal research platform. (ROSS has since ceased operations but persists solely to litigate this case.)
Down the line, I imagine the case may raise some interesting questions about AI and copyright. For example, what are the copyright implications of ROSS's use of Westlaw's copyrighted compilation of otherwise public domain materials to train an AI? Isn't that fair use (talk about transformative!)? If not, what are the damages? And so on.
For now, ROSS has moved to dismiss on the ground that West failed to …
This isn't news for Delaware FBA members, since Delaware FBA president Jeremy Tigan helpfully sent around an e-mail yesterday.
But for anyone who isn't already aware, Judge Stark's investiture will take place on Thursday 10/13 at 3:00 P.M. ET. You can watch it live here. That link should be active about 15 minutes before the event. Congratulations again to Judge Stark!
Speaking of MILs, Chief Judge Stark recently denied two motions that were, "in reality, motions for summary judgment" masquerading as MILs. Xcoal Energy & Res. v. Bluestone Energy Sales Corp., C.A. No. 18-819-LPS (D. Del. Aug. 3, 2020).
The motions were framed as MILS to exclude evidence on the defendants' "fraud-based claims and defenses" and their claim for lost profits. But they actually sought "judgment on particular claims and defenses[,]" and they didn't even mention the Federal Rules of Evidence.
The judge denied the motions outright, explaining that:
“[M]otions in limine should not be used as disguised motions for summary judgment.” Brown v. Oakland County, 2015 WL 5317194 at *2 (E.D. …
